‘Freedom once conferred cannot be revoked’

Abstract

The present South‐African constitutional developments in fragmenting its territory and granting self‐government to a number of “embryonic states”, necessitates an inquiry into the relationship between these entities and governmental organs of the Republic of South Africa especially in the light of the doctrine of parliamentary sovereignty.

Sovereignty as applied to the powers of the British Parliament hardened into a theory with a peculiar absolute dimension which very soon caused the loss of one colonial empire, and it would have caused greater loss if the colonial practice had not drifted away from this harsh doctrine. However, in theory it provided for unlimited powers in time and space and a absolute limitation on the part of parliament to affect any change to the scope of these powers. The decolonisation process from beginning to end remained incomprehensible in terms of such a theory, and it may truly be said that “the Commonwealth took the law by surprise”. This doctrine has also been applied to the powers of the South African parliament and on the authority of the postulations of Dicey and others the theory that parliament may abdicate but it may not irrevocably transfer any of its powers within its territory has become current.

In granting these powers to the legislative and executive authorities of these selfgoverning entities the South African parliament has provided by statute that it will not make laws inconsistent with such grant of sovereignty. According to the traditional theory this statement merely has interpretive value but is not binding to such an extent that these provisions may not be repeated or altered by the South African parliament. It is argued here that:

1.	Parliamentary sovereignty does not amount to unlimited legislative competence and it holds no power of abdication if such an act would result in a sovereignty vacuum. Sovereignty may be transferred in whole or in part but it may not be terminated as long as the community remains in existence;
2.	The decolonisation process would not have become such a theoretical stumbling block if territorial limitations of the powers of parliament had been clearly established. In accordance with this view the achievement of colonial independence should not affect the fullness of parliamentary sovereign powers, neither should it result in a sovereignty vacuum.

It is usually argued that sovereignty cannot be devided or shared; but it may be transferred as a whole. It follows that parliament cannot irrevocably surrender any part of its own authority, in any event not within its own territorial jurisdiction. However, this does not accord with the present South African realities and it is suggested that the theory of parliamentary sovereignty should be adjusted to take into account such a development. Therefore — parliament transfers a part of its sovereign powers within its territory to a self‐governing entity which has achieved such a state of development that it may be called a “nasciturus‐state”, the grant is irrevocable. The dictum of Stratford A.C.J. in Ndlwana v. Hofmeyer: “freedom once conferred cannot be revoked”, can be regarded as fully applicable in such a situation.